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Tran v. United States

United States District Court, D. Hawaii

September 25, 2017

KHANG KIEN TRAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CV. No. 16-00346 DKW-KJM

          ORDER (1) DENYING MOTION FOR RECONSIDERATION; AND (2) REFERRING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255(H) AS SECOND OR SUCCESSIVE

          Derrick K. Watson, United States District Judge.

         INTRODUCTION

         On September 8, 2000, Petitioner Khang Kien Tran was sentenced to a 360-month term of imprisonment for methamphetamine distribution and firearms violations. On September 15, 2017, Tran, incarcerated and proceeding pro se, filed a Motion for Reconsideration of Petitioner's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582 in Accordance with 18 U.S.C. § 3582(c)(2) Under the Authority of Amendment 782 of the Sentencing Guidelines (“Motion for Recon”). Dkt. No. 737. Because the Motion for Recon collaterally attacks his underlying conviction and sentence by raising a new ineffective assistance of counsel claim that has nothing to do with Amendment 782, the Court construes the matter as a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”). Properly characterized, this is Tran's fourth Section 2255 Motion and constitutes a “second or successive” petition that requires Section 2255(h) certification before this Court may assert jurisdiction. As a result, Tran's Motion for Recon is DENIED, and the matter is REFERRED to the Ninth Circuit Court of Appeals.

         BACKGROUND

         The Court recounts the factual and procedural matters relevant to Tran's current request for relief.

         I. Plea, Sentencing, and Direct Appeal

         In 1998, Tran was charged in the Third Superseding Indictment with: (1) conspiring to possess with the intent to distribute more than 100 grams of crystal methamphetamine between 1994 and 1996, in violation of 18 U.S.C. §§ 841(a)(1) and 846 (Count 1); (2) distributing more than 100 grams of crystal methamphetamine on January 27, 1995, in violation of Section 841(a)(1) (Count 2); (3) possession with the intent to distribute more than 100 grams of crystal methamphetamine on January 27, 1995, in violation of Section 841(a)(1) and 18 U.S.C. § 2 (Count 3); (4) carrying a firearm during and in relation to a drug trafficking crime on January 27, 1995, in violation of 18 U.S.C. § 924(c)(1) (Count 4); and (5) being a felon in possession of a firearm on January 27, 1995, in violation of 18 U.S.C. § 922(g)(1) (Count 5). See Dkt. No. 434 (7/8/98 Third Superseding Indictment).

         On December 10, 1998, pursuant to a plea agreement, Tran entered a plea of guilty to Counts 2 and 5, and the government agreed to dismiss Counts 1, 3, and 4. See Dkt. Nos. 503 (12/10/98 Minutes) and 511 (12/28/98 Order). On September 8, 2000, Tran was sentenced to 360 months imprisonment as to Count 2 and 120 months as to Count 5, terms to run concurrently. The sentencing court also imposed a five-year term of supervised release on Count 2, and three years for Count 5, also to run concurrently. See Dkt. Nos. 592 (9/8/2000 Minutes) and 600 (10/2/2000 Presentence Investigation Report [“PSR”]).

         Tran appealed on April 16, 2001, challenging the effectiveness of counsel, alleging that the government breached its obligations under the plea agreement, and asserting that the court erred in calculating his guideline range. The Ninth Circuit affirmed his conviction and sentence on January 31, 2002. See Dkt. No. 624.

         II. First, Second, And Third Section 2255 Motions

         In his first Section 2255 Motion, filed on October 6, 2003, Tran challenged his sentence based on allegations of ineffective assistance of counsel and prosecutorial misconduct. The sentencing court denied the first Section 2255 Motion on February 3, 2004 and denied Tran's application for a certificate of appealability on May 7, 2004. See Dkt. Nos. 636 and 643. Tran then sought reconsideration, which the sentencing court construed as a “second or successive” habeas petition because it challenged his sentence based on a new theory of law. See Dkt. No. 659 (1/4/05 Order). The sentencing court transferred Tran's second 2255 Motion to the Ninth Circuit Court of Appeals.[1] See Dkt. No. 659.

         Tran filed a third Section 2255 Motion on June 24, 2016.[2] Dkt. Nos. 707, 709. On July 7, 2016, the Court concluded that Tran's third Section 2255 Motion seeking relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), was a “second or successive” petition that required certification from the Ninth Circuit Court of Appeals. The Court therefore denied the Section 2255 Motion without prejudice and referred Tran's third Section 2255 Motion and Application to the Ninth Circuit, pursuant to Ninth Circuit Court of Appeals Rule 22-3(a). Dkt. No. 712. On May 10, 2017, the Ninth Circuit granted Tran's Application and instructed the district court to process it as a Section 2255 motion. Dkt. No. 726. The Court did so, and then denied Tran's third Section 2255 Motion seeking relief under Johnson, because Tran was neither subject to a sentencing enhancement under the Armed Career Criminal Act nor classified as a career offender under the Sentencing Guidelines. See 8/3/17 Order at 6-9, Dkt. No. 736. The Court also denied Tran's request to hold the matter in abeyance pending the Supreme Court's decision in Sessions v. Dimaya, No. 15-1498, because his offenses were not “crimes of violence” and would not be impacted by the holding in Dimaya. See 8/3/17 Order at 9-10. The Court likewise denied his request for a sentencing reduction pursuant to Amendment 794 and declined to issue a certificate of appealability. See 8/3/17 Order at 11-13.

         III. Motion For Recon

         A. Prior Orders Denying Motions For Reduction Of Sentence

         Tran's Motion for Recon purports to seek reconsideration of two prior orders filed under 18 U.S.C. § 3582(c)(2)-the November 25, 2014 Order denying his motion for reduction of sentence pursuant to Amendment 782 (“11/25/14 Order”) entered by Judge David Alan Ezra (Dkt. No. 679), and this Court's September 22, 2016 (“9/22/16 Order”) denying the same (Dkt. No. 724).

         Judge Ezra denied Tran's first motion for a reduction of sentence, finding that even if Amendment 782 resulted in a two-level decrease in Tran's offense level, as Tran urged, that decrease would “not change his guideline range” and would not result in a reduction of his sentence. 11/25/14 Order at 5-6. In 2016, the Ninth Circuit affirmed that decision: “The district court properly concluded that Tran is ineligible for a sentence reduction because Amendment ...


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